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Outline of Recent WERC Developments -- September 2002


Presented at WERC Professional Staff Meeting

by Peter G. Davis, WERC General Counsel

August 26, 2002

Duty to Bargain Issues

Dodgeland Education Association v. WERC, 240 Wis.2d 287 (2002)

Supreme Court (4-3) affirms the Commission's decision that:

(1) teacher preparation time continues to be a permissive subject of bargaining; and

(2) the maintenance of "fringe benefits" component of a QEO is limited to mandatory subjects of bargaining [Hempe dissents as to (2)].

Racine Education Association v. WERC, Case No. 01-0247 (Ct. App. Dist II 10/01)

Court of Appeals affirms legitimacy of Commission's use of union's illegal conduct when determining that employer's implementation of offer was permissible despite absence of impasse.

City of Milwaukee, Dec. No. 30427 (WERC, 7/02)

Police union proposal that would allow employees to grieve any assignment or transfer that was believed to be disciplinary (in whole or in part) is a mandatory subject to bargaining. Employer concern that such a contract provision would inhibit management decision-making is relevant argument at bargaining table but not as to mandatory/permissive status of proposal. Potential for arbitral reversal of critical law enforcement decision is not sufficient to overcome relationship of proposal to employee discipline.

City of Appleton, Dec. No. 30253 (WERC, 12/01)

Firefighter union proposal that would cleanse employee's disciplinary record or limit the employer's ability to use past discipline in future disciplinary situations is a prohibited subject of bargaining to the extent it prevents: (A) PFC and circuit court from meeting their obligation under Sec. 62.13(5)(em)7, Stats., to consider the employee's "record of service" when deciding whether a suspension, reduction in rank or discharge was for just cause; and (B) the chief from considering the employee's "record of service" when deciding whether to seek suspension, reduction in rank or termination. The proposal is a mandatory subject of bargaining to the extent it applies to disciplinary actions that are not subject to the provisions of Sec. 62.13(5), Stats.

Milwaukee County, Dec. No. 30431 (WERC, 7/02)

Sheriff deputy union proposal that would prevent sheriff from deciding to subcontract unit duties which give "character and distinction" to the office of sheriff (jail security/crime scene evaluation) is a prohibited subject of bargaining because it infringes on the sheriff's constitutional powers. Decision driven by Court of Appeals' analysis in Wisconsin Professional Police Ass'n v. Dane County, 149 Wis.2d 699 (Ct. App. 1989) and Washington County v. Deputy Sheriff's Ass'n, 192 Wis.2d 728 (Ct.App. 1995)

Random Lake School District, Dec. No. 29998-C (WERC, 8/02)

Where employer proposes to modify existing fringe benefits during the term of the contract, union has no obligation to demand to bargain and can rely on existing contract.


Superior Schools, Dec. No. 30347 (WERC, 5/02)

Employer petition for declaratory ruling dismissed as untimely where employer files "written objections" prior to request from investigator.

South Milwaukee Schools, Dec. No. 30277-A (WERC, 3/02)

Commission concludes that Sec. 227.49(1), Stats., requires that an "original" petition for rehearing be filed. Rehearing petition is dismissed because only a copy of petition is filed with Commission.

Waterford Sewerage District, Dec. No. 30214-B (WERC, 6/02)

Commission majority (Hahn dissenting) holds that a sworn affidavit detailing alleged change in circumstances must accompany a unit clarification petition that seeks to litigate an issue already decided by the Commission in an earlier case. Commissioner Hahn concludes that counsel's assertions of specific changed circumstances are sufficient.

City of Milwaukee, Dec. No. 30297 (WERC, 3/02)

Looking for guidance to judicial interpretations of Sec. 805.04(2), Stats., Commission concludes that union can withdraw and then refile interest arbitration petition to take advantage of change in law. "Rudiments of fair play" not offended where investment in time and resources in resolving dispute under "old law" is limited.

AFSCME Council 24, Dec. No. 30215-B (WERC, 1/02)

Examiner properly required complainant to amend complaint to comply with requirements of administrative rules and appropriately dismissed complaint when complainant did not do so despite multiple opportunities to amend and warnings of dismissal.

MATC, Dec. No. 28562-D (WERC, 1/02)

General allegation that illegal conduct is ongoing is not sufficient to overcome failure to cite a "specific act" within one year of the filing of the complaint.

Election/Unit Clarification Issues

Mineral Point Unified School District v. WERC, 251 Wis.2d 325 (Ct.App. 2002)

Court broadly affirms Commission's analysis of a "confidential employee" issue.

City of Marshfield v. WERC, 252 Wis.2d 656 (Ct.App. 2002)

Court affirms Commission conclusion that craft employees have a statutory right to election to determine whether they wish to continue to be included in same unit as non-craft employees.

City of Lake Geneva, Dec. No. 30225 (WERC, 10/01)

If the "volunteers" in a mixed Sec. 62.13(8), Stats., "paid" and "volunteer" fire department are compensated and hired and disciplined by the City, the "volunteers" are "municipal employees." Unit of casual employees and regular part-time employees found appropriate.

City of Kenosha, Dec. No. 7529-E (WERC, 6/02)

Unit of "long term seasonals" found appropriate (Hempe dissenting) and unit clarification petition seeking their inclusion in existing unit with employees performing same work in same locations with same supervision is dismissed.

Mount Horeb Schools, Dec. No. 23377-B (WERC, 2/02)

Following issuance of Direction of Election, incumbent union cannot withdraw from its stipulation for election based on claim that rival union's showing of interest was tainted.

Madison Schools, Dec. No. 12654-E (WERC, 1/02)

Educational assistant unit found more appropriate than custodial unit for placement of security assistants.

Janesville Schools, Dec. No. 6678-A (WERC, 2/02)

Unit clarification petition seeking inclusion of part-time teachers is dismissed because historical exclusion of employees and existing contract language defining unit combine to establish an agreement to exclude these employees.

Pending Issues

* Act 11 ramifications for QEO calculations

* Must fringe benefits in effect in April of base year be maintained as part of QEO even where parties agreed that benefit would sunset at end of contract.

* Union rights to use employer email -- appeal of Dec. No. 30202-B (Nielsen, 7/02)

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